MARCO TEÓRICO 2.
2. Perfil del encuestador
As the Commission wrote in September 2016,
“… in the face of the terrorist threat faced today, the efficiency of security checks is highly dependent on the exchange of information not only between law enforcement authorities, but also intelligence communities. Effective and timely information-sharing among relevant authorities is a prerequisite for successful counter-terrorism action. But there remains fragmentation at both national and EU levels which can lead to dangerous security gaps.”172
The Commission suggests that the EU level can add value by “helping to instil a culture of common responsibility, and the will and capacity to turn that into operational action.”173 One of the recurring issues amongst practitioners and experts alike is the apparent lack of trust between services within and between Member States, accompanied by complex legal boundaries that hinder effective sharing of information. And to add to that, experts also point to an oversight deficiency: which body will oversee the proper sharing and use of sensitive and in many cases classified information, in order to safeguard fundamental rights as well as the safety of sources of information? To underline these concerns, many point to the lack of willingness to share data and information via the existing EU-systems. Some Member States’ services complain that some countries upload a lot of relevant data, whereas others behave as free riders.174 One Member State agency mentioned that they upload loads of data into e.g. Europol systems, but when searching these systems they end
171 At this point, it is also important to note that already in earlier reports, the limited role of the European Parliament in terms of oversight and monitoring has been stressed, see e.g., European Parliament, Directorate- General for Internal Policies, Policy Department C, Citizens’ Rights and Constitutional Affairs, Developing an EU Internal Security Strategy, fighting terrorism and organised crime, (2011) pp. 119-120.
172 European Commission, Communication from the Commission to the European Parliament, the European Council and the Council, Enhancing security in a world of mobility: improved information exchange in the fight against terrorism and stronger external borders (COM(2016) 602 final).
173 Ibid.
174 The research team was not able to assess the volumes of data and information uploaded in the respective systems by the different Member States to substantiate these remarks.
up finding their own data. At the same time, some practitioners emphasise the fact that there is not a lack of data and information, and that sharing too much can produce a data overload. Moreover, data quality is also an issue: only data of good quality is helpful. After all, all the data and information have to be analysed and although big data and software can be helpful, a lot of manual processing and analysis has to be carried out. It can be helpful, but this is not always the case. Having the sufficient people with the right analytical skills can make a lot of difference.
On the EU level, some interesting developments have occurred in recent years. In parallel to the evolution of Europol’s European Counter Terrorism Centre (ECTC), the Counter Terrorism Group (CTG) has been strengthened in 2016 by introducing a common platform for the exchange of information between Member States’ security services,175 accompanied by secure infrastructure for timely and safe communication. According to the Commission, it is now urgent to reinforce the two tracks of the ECTC and the CTG, keeping them separate but linking the two communities, which would add up to an effective counter- terrorism cooperation framework in Europe, without the need for new structures. The Commission therefore calls upon the Member States to “facilitate an information exchange hub based on the interaction between the law enforcement community and the intelligence community, within the framework of the CTG and the ECTC, in accordance with relevant EU and national rules and arrangements.”176 The geographical vicinity (less than 15 kilometres) of both the ECTC and the CTG-platform177 might give rise to the attractiveness of such a practical solution: the physical nearness of the two platforms, populated with experts from the cooperating Member States, might facilitate an easy interaction between the two communities without the necessity to technically link the two platforms. However, it is a vast leap between interaction between the two communities and an ‘information exchange hub’. Information exchange on a structured base in a hub between law enforcement and intelligence can only be envisaged after challenges have been overcome, such as the legal obstacles in sharing information between police and intelligence services, the use of intelligence in court cases with respect to the fair trial principles, and the legal guarantees that should therefore be built in the system which are different in every national jurisdiction.
Another challenge to overcome in linking the ECTC and the CTG-platform is that the difference between intelligence and police information is not evenly clear in all countries, and in several instances the different police and security services within one Member State have difficulties in cooperating with each other within the national boundaries. Practitioners and experts point to the fact that a seamless internal cooperation between the law enforcement agencies and security and intelligence services is key for achieving good international cooperation in a security union. Another point that has been raised is the fact that police and intelligence work are different in many respects and should remain different. Police work has a short cycle and is primarily focused on investigating a case, arresting suspects and bringing them to justice. A public and transparent criminal investigation which is founded on elements like the verifiability of sources and evidence is essential in the European legal order. Intelligence work on the other hand is not held to the same guarantees as a criminal investigation, is bound to the principles of secrecy and
175 See Algemene Inlichtingen en Veiligheidsdienst, “Nieuw platform voor verdere intensivering samenwerking Europese inlichtingen- en veiligheidsdiensten”, (25 January 2016).
176 European Commission, Communication from the Commission to the European Parliament, the European Council and the Council, Enhancing security in a world of mobility: improved information exchange in the fight against terrorism and stronger external borders (COM(2016) 602 final).
177 The ECTC with Europol in The Hague, the CTG platform with the Dutch General Intelligence and Security Service (AIVD) in Zoetermeer, also in the Netherlands.
protection of sources and is focused more on the long-term developments, on identifying and countering evolving threats. So, a too close cooperation in a physical hub could lead – next to all kinds of legal complexities, given the different legal contexts under which information has been collected – to practical issues around how to prioritise the use of intelligence and information: solely for investigation, arrests and prosecution, or also for the analysis of the evolving threats.
What interviewees perceive as very positive in the current development of both the ECTC and the CTG-platform is the focus on bringing experts from different services in different Member States together to assess the intelligence and information that is available to both the platforms within the context of the service that has collected it. Jointly they can assess the need to share specific intelligence or information and under what circumstances. This helps to prevent an information overload: the need to know and the need to share is assessed upfront, rather than by default (and currently, it is not always clear what information is relevant to whom). Moreover, it helps to put data and information in perspective, rather than treat any data and information only in the context of the receiving party. And finally – as many practitioners mentioned – it helps to shift the focus from yet another system or database to a more needs-based approach. Another factor that might add value is that in the cooperation in these platforms, the differences in maturity between services becomes more apparent, and that it provides a peer-to-peer context to help improve the level of maturity of the less developed services. And with an equal level of maturity, knowledge and capabilities and with improved information exchange within the framework of the CTG and the ECTC, in accordance with relevant EU and national rules and arrangements, the EU creates a better back office with more equal levels of intelligence and data in all Member States and the capabilities to match those with data e.g. collected inter alia for counter-terrorism purposes in border management systems and financial tracking programmes.